Acting upon the appeal of the defence counsel of the convicted N.S. against the judgment of the Basic Court in Skopje, the Appellate Court in Skopje – Specialized Department for Investigation and Prosecution of Organized Crime and Corruption Offences (S. KOK. no. 115/15) in a closed session dismissed the appeal as unfounded and confirmed the first-instance verdict against N.S. convicting him of the criminal offence of Smuggling of Migrants under Art 418b paragraph 4 in relation to paragraph 2 of the RM CC and sentencing him to imprisonment of five years and six months.
Proceeding in accordance with Art 427 paragraph 1 of the Criminal Procedure Code, the court ex officio examined whether there had been a substantial violation of the criminal procedure referred to in Art 415 para. 1 items 1,5,6,8 to 11 of the CPC and found that no such violation was committed, that the impugned judgment was clear, comprehensible and completely in accordance with the rules and regulation regarding the existence of the criminal offence and criminal liability of the defendant.
Considering the fact that the first-instance court rendered the decision on the basis of a full, clear and unforced confession of the defendant N.S., which he had given during the examination in chief, referring to the facts which represent the description of the actions, aware of all crucial facts and the consequences that the confession entails, the first instance court, acting in keeping with law, processed and evaluated only such evidence as was relevant for deciding on the type and severity of punishment.
The decision of the Appellate Court emphasizes that in similar procedural situations, in accordance with Art 381 para 4 of the Criminal Procedure Code of the Republic of Macedonia, the convict has no right to appeal against the verdict on the grounds of improperly established facts. The court therefore did not consider the allegations of the convict that he had agreed on business cooperation with a transportation and logistics company Exxxxx Ltd and taken over a taxi vehicle in order to perform public transport in keeping with the Law on Road Traffic, that he had a ride to Gevgelija and that on his way back he was stopped by a group of foreign nationals. As a taxi driver, he agreed to drive them to Kumanovo, but he did not know that they were migrants. He stated that he did not have a prior agreement with them, that by checking the listing of his mobile phone it could be established that he had not communicated with anyone from the group, that no one else had hired him. He also pointed out that the indictment was based on the records and photo documentation on seized objects, which could be tampered with, so that the case could not be treated as a criminal offence, but perhaps as an infringement.
The Appellate Court found, on the basis of the facts, that the first instance court had correctly applied the Criminal Code, given that the actions of the convicted N.S. precisely described in the contested ruling, contained all the essential elements of the criminal offence of Smuggling of Migrants under Art 418b para 4 in relation with Art 2 of the Criminal Code, due to which the allegations on misapplication of material law were unfounded.
Assessing the decision on the sentence, the Appellate Court pointed out that the first-instance court had acted correctly when it imposed imprisonment of five years and six months after taking into consideration both the mitigating and aggravating circumstances defined in Articles 39 and 40 of the Criminal Code. In this regards, the first-instance court had correctly considered the intensity of damage to the protected good and the frequency of the criminal offence as aggravating circumstances, and - in correlation with these - the mitigating circumstances (the earlier life of the defendant, the fact that no criminal proceedings had been instituted against him, personal and family situation, material situation, circumstances and conduct following the perpetration of the offence, expressed regret and repentance for the committed criminal offence, proper conduct during the proceedings) and pronounced the sentence in accordance with the provisions pertaining to mitigation of penalties (the legislator prescribed the sentence of at least eight years of imprisonment).